EHRM, 22-10-2009, nr. 69519/01

On an unspecified date, following the Pacific Military Court's request, the General Headquarters' 8th Department of the Ministry of Defence appointed seven experts and the Ministry of Nuclear Energy appointed an expert. The experts were asked whether the items of information listed in the indictment contained State secrets.

On 14 September 2001 the experts submitted their report, stating that three out of the ten items in question were of ‘restricted distribution’, whilst the other seven contained State secrets. According to the applicant, in defining whether the disclosed information contained State secrets, the experts had applied the Ministry of Defence's unpublished Decree no. 055 of 10 August 1996, Presidential Decree no. 1203:95 of 30 November 1995 and section 5 of the State Secrets Act, enacted on 21 July 1993 and amended on 6 October 1997. In the applicant's submission, he had access to Decree no. 055, read it and signed a document to the effect that he had read it in the autumn of 1996.

On 25 December 2001 the Pacific Fleet Military Court convicted the applicant of treason through espionage under Article 275 of the Russian Criminal Code.

As regards the actus reus of the offence, the court found that in 1996–1997 the applicant had established friendly relations with a Japanese journalist, Mr T.O., and provided him with information, at the latter's requests, in exchange for regular payments. In August-September 1997, in his telephone conversations with the applicant, Mr T.O. had repeatedly expressed his interest in the military exercises that were being conducted by the Pacific Fleet at that time, especially their particular features and any differences from previous exercises. The judgment further stated:

The court based its findings on statements by a number of witnesses, five recordings of the applicant's telephone conversations with Mr T.O. made by the FSB in June-September 1997, and the expert report of 14 September 2001, insofar as it stated that the applicant's handwritten notes contained information classified as secret. In particular, the court noted with regard to the expert report of 14 September 2001:

The applicant confirmed that he had attended the meeting of 11 September 1997 and made summary notes of speeches and reports of its participants, but pleaded not guilty and argued that he had lawfully attended the said meeting, since he had the right to receive and impart information as a journalist. The applicant insisted that he had had no intention of transferring this information to Mr T.O. and had kept it in order to enrich his own knowledge on the latest developments in the Navy and to inform his subordinates thereof, and to report on the results of the military exercises in the Boyevaya Vakhta newspaper. The applicant stated that all his activities had fully complied with Russian legislation.

As regards the applicant's argument that he had the right to freedom of expression, and was therefore entitled to attend the meeting of 11 September 1997, the court noted that the right to information was not absolute and could be limited by law for the protection of national security. Under national law, military personnel's right to information was limited in the interests of military service and, in particular, such personnel had an obligation not to disclose state or military secrets. As a serving officer, the applicant was bound by the legal provisions regulating the way in which servicemen accessed, collected, kept, imparted and published information classified as secret, and the way they communicated with foreign nationals.

The court also rejected the applicant's argument that he had made the impugned notes with a view to their publication in Boyevaya Vakhta. In this respect the court noted that the applicant had been fully aware of the relevant regulations which prohibited publication of information disclosing the actual names of military formations and units, and there had therefore been no practical use for such information in the applicant's publications.

The court further examined the conclusions of the expert report of 14 September 2001 in respect of the other items of information imputed to the applicant, compared them with the other materials of the case and rejected them as unreliable. In particular, the court stated that some of the pieces of information imputed to the applicant, including the list of accidents on Russian nuclear submarines and the map of the territory of military unit no. 40752, could be found in public sources, such as a military reference book on submarines, or a Greenpeace report. In this respect the court noted that receiving, keeping and disseminating publicly accessible information was not punishable under the Russian legislation in force and that there was no practical need to classify information which could be found in public sources.

The court thus acquitted the applicant of all the other charges listed in the indictment, some of them having been waived by the prosecuting party.

In view of the fact that the applicant had a minor child, no criminal record and positive professional references and decorations, and given that his offence had caused no damage, since he had not transferred the impugned information, the court referred to the ‘special-circumstances’ clause of Article 64 of the Russian Code of Criminal Procedure and sentenced the applicant to a term below the statutory minimum, namely, four years' imprisonment in a strict-security correctional colony, and deprivation of a military rank.

In their appeal submissions the defence complained, inter alia, that the experts who had drafted the report of 14 September 2001 had relied on unpublished Decree no. 055 of the Ministry of Defence in asserting the classified nature of the impugned information. The defence argued that the use of Decree no. 055 by the experts had resulted in the incorrect application of the State Secrets Act by the first-instance court. They further argued that the State Secrets Act had been applied retrospectively, since there had been no list of information constituting State secrets at the time of the commission of the offence in question. The defence also contended that, in any event, the information contained in the applicant's notes had been accessible from public sources.

On 25 June 2002 the Supreme Court of Russia upheld the applicant's conviction on appeal, having excluded a reference to the unlawfulness of his presence at the meeting of 11 September 1997 and to the general unlawfulness of his off-duty contacts with foreign nationals.

The Supreme Court noted that the question whether the applicant's handwritten notes had contained State secrets had been thoroughly and objectively examined in the first-instance judgment. It confirmed that the trial court had based its judgment on the expert report of 14 September 2001, which had stated that ‘information disclosing the actual names of highly critical and secured military formations and units and information on the presence among the participants in the military exercises of the military intelligence units and information on the means and methods of protection of classified data [constituted] State secrets under section 5, paragraphs 1 (6) and 4 (5) of the State Secrets Act of the Russian Federation (no. 5485-1) of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997, paragraphs 13 and 77 of the List of Information classified as State Secrets, approved by Decree of the President of the Russian Federation no. 1203 of 30 November 1995, and paragraphs 129 and 240-1 of … Decree of the Ministry of Defence no. 055’. The appellate court further noted that, when assessing the expert report of 14 September 2001, the trial court had rejected a number of its conclusions in which the experts had groundlessly stated that some of the impugned items of information had contained State secrets. The Supreme Court thus concluded that the first-instance court had critically assessed the expert report of 14 September 2001 and had only relied on those conclusions which had been objectively confirmed during the trial.

The Supreme Court also upheld the first-instance finding that the applicant's intent to transfer the impugned information to Mr T.O. had been proved by the recordings of his telephone conversations with the latter. The court further rejected the applicant's argument that the information in his handwritten notes could have been found in public sources. In that connection it stated — with reference to the trial court's finding — that ‘no data concerning the actual names of highly critical and secured military units, ships and formations, and, in particular, military intelligence units, the means and methods of radio electronic warfare, as contained in [the applicant's] handwritten notes, [was] openly published’.

The court also rejected the applicant's argument that Decree no. 055 had been unlawfully applied in his case, holding that this decree had been operative on the date that the applicant had committed his offence and was still in force.

Finally, as regards the applicant's argument that the law had been applied retrospectively in his case, the Supreme Court noted:

The applicant unsuccessfully applied for supervisory review of his conviction.

On 23 January 2003 the applicant was released on parole.

Article 29 § 4 of the Russian Constitution provides that everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means and that a list of information constituting State secrets is to be defined by a federal statute.

On 20 December 1995 the Russian Constitutional Court examined the compatibility of the Criminal Code of the RSFSR, then in force, with the Russian Constitution, in so far as the former established criminal liability for State treason, and stated:

On 29 December 1999 the St Petersburg City Court acquitted Mr Nikitin, a former naval officer, of charges under Articles 275 (High treason) and 283 § 1 (Divulging of information constituting State secrets) of the Russian Criminal Code (case no. 78-000-29). Mr Nikitin was accused, in particular, of having collected in August 1995, and having transferred in September 1995, information constituting State secrets. The court held as follows:

On 17 April 2000 the Supreme Court of Russia upheld Mr Nikitin's acquittal in the following terms:

On 25 July 2000 the Supreme Court of Russia quashed on appeal, and remitted for a fresh examination to a trial court, the sentence of Mr Moiseyev, a former employee of the Russian Ministry of Foreign Affairs, who had been charged with offences under Article 275 of the Russian Criminal Code. It found as follows:

In so far as his complaints under Article 7 of the Convention were concerned, the applicant insisted that he had been convicted on the basis of retrospective application of the State Secrets Act. He argued, in particular, that between 11 September 1997, the date on which he had collected the information in question, and 9 October 1997, the date on which the amendment to the State Secrets Act incorporating the list of information classified as secret had become operative, there had been no such list defined in a federal statute, and therefore there had been no legal basis for his conviction for the alleged offence for that period. The applicant contended that Presidential Decree no. 1203 of 30 November 1995, approving the list of information classified as State secrets, could not be regarded as a proper legal basis for his conviction, given that Article 29 § 4 of the Constitution clearly stated that ‘a list of information constituting State secrets shall be defined by a federal statute’. He also insisted that in the absence of such a list he had been unable to foresee that his actions had been criminally liable.

In that respect, the applicant relied on the case-law of the Russian courts in the cases of Nikitin v. Russia (no. 50178/99, ECHR 2004-VIII) and Moiseyev v. Russia (no. 62936/00, 9 October 2008). In particular, he pointed out that the Supreme Court of Russia in its decision of 17 April 2000, given in the case of Nikitin, and in its decision of 25 July 2000, given in the case of Moiseyev, had consistently stated that the list of information constituting State secrets should be defined in a federal statute, and that such a list had first been established in the federal law of 6 October 1997 introducing changes and amendments to the State Secrets Act of the Russian Federation.

The applicant further contended that the domestic courts had relied on unpublished Decree no. 055 of the Ministry of Defence, which, in his opinion, had lead to an extensive interpretation and overly broad application of the State Secrets Act. Whilst he accepted that the trial court had not referred to Decree no. 055 directly, he considered that the court had relied on it indirectly by using the expert report of 14 September 2001. According to the applicant, the report in question had established the classified nature of his handwritten notes on the basis of the above-mentioned unpublished decree. In his view, this was confirmed by the formula ‘the activities of radio electronic warfare units during the exercises’ used by the trial court in his conviction and taken word for word from Decree no. 055, rather than from section 5 of the State Secrets Act. In the applicant's submission, the formula employed in the Act was narrower and covered only one type of the activities of radio electronic warfare units, namely information concerning ‘the means and methods of protection of classified data’. The applicant also pointed out that the use of Decree no. 055 in his case had been acknowledged by the appellate court, which had stated in its decision of 25 June 2002 that the expert report of 14 September 2001 had been based on the State Secrets Act, Presidential Decree no. 1203 and Ministerial Decree no. 055.

The applicant thus argued that, in any event, he could not have foreseen that the information which he had collected at the meeting of 11 September 1997 could have been of a classified nature, as none of the participants at the said meeting had informed the others about the secret nature of the information which had been distributed at the meeting. He also insisted that the information which he had collected and kept at home was of minor importance.

The applicant further maintained his complaint under Article 10 of the Convention. He insisted that the authorities had persecuted him for his journalistic activity and his publication of articles on serious environmental issues. He also contended that the impugned information could have been found in public sources, and in particular in reports by various environmental organisations, that it was of minor importance and that it could not therefore be regarded as a State secret.

The Government argued that in the applicant's case the domestic courts had not applied the domestic law retrospectively, nor had they construed it extensively.

They submitted that the courts' assessment of the applicant's actions and, consequently, his conviction had been based on Article 275 of the Russian Criminal Code, the State Secrets Act as amended on 6 October 1997 and Decree no. 1203 of the Russian President of 30 November 1995, which approved the List of Information classified as State Secrets. They referred to the decision of 25 June 2002 in which the appellate court confirmed that the trial court had lawfully applied the said legal instruments in the applicant's case, given that the offence imputed to the applicant had been of a continuous nature, had commenced on 11 September 1997, when the applicant collected the imputed notes, and had been halted on 20 November 1997, when the notes had been seized from the applicant. According to the Government, in a situation where there was a criminal offence of a continuing nature, it was legislation in force at the moment when such an offence was halted that was applicable. The Government contended that the applicant could not but have foreseen the application of the above-mentioned legal instruments, as all of them had been duly published and had therefore been accessible to him.

The Government disputed the applicant's argument that at the time when he had committed the offences imputed to him the information classified as secret had not been defined by law. In the Government's submission, the decision of the Constitutional Court of Russia dated 20 December 1995 had established that the requirements of Article 29 § 4 of the Constitution of Russia had been fulfilled by enactment of the State Secrets Act of 21 July 1993, which had defined the notion of State secrets and listed the information classifiable as State secrets. They also submitted that, subsequently, Presidential Decree no. 1203 of 30 November 1995 had enacted the list of information classified as State secrets. The Government pointed out that, in any event, the amendment of 6 October 1997 had not changed the provisions of section 5 of the State Secrets Act which had formed the basis for the applicant's conviction.

In so far as the applicant complained that the domestic courts had relied on a secret Decree no. 055 of the Ministry of Defence, which had allegedly lead to an extensive interpretation and overly broad application of the State Secrets Act, the Government contended that the said decree only defined the degree of secrecy of information classified as State secrets under federal law and had not prescribed any rules of conduct for individuals, but had been intended only for establishing the manner and criteria for defining the degree of secrecy of information classified as State secrets, and therefore had not pertained to a category of legal instruments which were to be published. The Government thus insisted that Decree no. 055 had been relied on in the applicant's case only in so far as it had been necessary to assess the degree of importance and secrecy of the information collected by the applicant rather than for determining whether that information had constituted a State secret, this latter question having been decided on the basis of the State Secrets Act and Presidential Decree no. 1203.

The Government further argued that the applicant's case was distinguishable from the Nikitin case referred to by the applicant. They pointed out that in the latter case, the offences imputed to Mr Nikitin had been committed before 5 October 1995, that is, before Presidential Decree no. 1203 had been enacted, whereas in the present case the actions imputed to the applicant had been halted on 20 November 1997, when the said decree was already in force. The Government further contended that the applicant's reference to the case of Moiseyev was also incorrect, given that the decision of the Supreme Court of Russia on which the applicant relied had been quashed and Mr Moiseyev had been convicted of espionage in a new set of court proceedings. The Government pointed out that legal arguments concerning the allegedly retrospective application of the State Secrets Act deployed by the appellate court in its final decision in the case of Moiseyev had been similar to those of the appellate court in its decision of 25 June 2002 in the applicant's case, and therefore there had been no conflict on that issue in the practice of the domestic courts.

They also pointed out that the applicant could not but have realised that the information which he had recorded in his written notes had been classified, since it had been disclosed among a limited group of persons at the meeting of 11 September 1997 on condition that it would be kept secret. The Government concluded that the provisions of Article 7 of the Convention had not been infringed in the applicant's case.

The Government further disputed as unsubstantiated the applicant's argument that he had been a victim of political persecution because of his journalistic activities and critical articles and pointed out that his conviction had been based on various pieces of evidence relied on by the Pacific Fleet Military Court in its judgment of 25 December 2001. The Government argued that the interference with the applicant's freedom of expression had been justified under Article 10 § 2 of the Convention. They submitted that, in accordance with the domestic legislation on the media, divulging information containing State secrets was prohibited and that information must be received and imparted lawfully. They further pointed out that at the material time the applicant had been a serving military officer and by virtue of the relevant legal provisions he had been entitled to have access to any classified information only in so far as this had been rendered necessary by his professional duties and only to write down classified information on the source material that had been registered by a competent authority. Moreover, he had been under an obligation to keep secret any classified information he had received and prevent any leaks of such information. It had also been prohibited to take secret materials outside the premises of the headquarters or to keep them in an inappropriate place. They insisted that, by virtue of his status of a serviceman, the applicant had been fully aware of all those limitations and could have clearly foreseen the negative consequences of a breach of the relevant regulations.

The Government conceded that the applicant had indeed been convicted not for the transfer of the imputed information to Mr T.O., but rather for his intention to transfer it. In this connection, however, they pointed out that the elements of an offence punishable under Article 275 of the Russian Criminal Code included not only the transfer itself but also the collection, theft or storage with the intention to transfer of information constituting State secrets and that the applicant's intention to transfer the imputed information to Mr T.O. had been proven by evidence examined by the trial court, namely by the recordings of the applicant's telephone conversations with Mr T.O.

The Government further contested the applicant's allegation that the information contained in his handwritten notes had been available from public sources. They submitted that these arguments had been thoroughly examined by the domestic courts and rejected as unfounded. The Government pointed out that the materials of the criminal case against the applicant had contained several publications, including that of the applicant, which had reported on the results of the tactical training exercises but did not disclose any classified information, in particular any information concerning the actual names of military units, or the means and methods of radio electronic warfare. Having compared those publications and the applicant's handwritten notes, the courts rightly concluded that the information in the applicant's handwritten notes had not been accessible from public sources.

Lastly, the Government disputed the applicant's assertion that by collecting the impugned information, he had carried out his usual journalistic activity. In this connection they referred to the recordings of the applicant's telephone conversations with Mr T.O., which clearly showed that the latter had expressed an interest only in information of a classified nature.

The Court reiterates that the expression ‘prescribed by law’, within the meaning of Article 10 § 2 of the Convention, requires first of all that the impugned measure should have some basis in domestic law; however, it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must be able to foresee the consequences of his or her actions, and that it should be sufficiently precise.

The Court further has no difficulties in accepting that the measure complained of pursued a legitimate aim, namely protection of the interests of national security.

As regards the proportionality of the interference at issue, the Court notes first of all that the applicant's argument that his intent to transfer the impugned information was not proven and that the said information could be found in public sources appear unconvincing. The domestic courts carefully scrutinised each of the applicant's arguments and corroborated their findings with several items of evidence. They relied, in particular, on several recordings of the applicant's telephone conversations with a Japanese national, proving his intention to transfer the information in question to Mr T.O. (see paragraphs 22 and 32 above). The domestic courts also gave due consideration to, and rejected as unreliable, the applicant's argument that the information collected by him was publicly accessible. Indeed, they critically assessed the expert report of 14 September 2001, having compared the experts' conclusions with other materials of the case, and rejected those conclusions which listed as classified information that could be found in public sources, such as a military reference book on submarines or a Greenpeace report (see paragraph 26 above). In respect of the information collected by the applicant, they noted, however, that it was not openly published (see paragraph 32 above).

The Court further cannot but accept the arguments of the domestic courts and the Government that, as a serving military officer, the applicant was bound by an obligation of discretion in relation to anything concerning the performance of his duties (see Hadjianastassiou, cited above, § 46). The Court also considers that the disclosure of the information concerning military exercises which the applicant had collected and kept was capable of causing considerable damage to national security. It is true that the applicant did not in fact transfer the information in question to a foreign national; on the other hand, the Court does not overlook the fact that his sentence was very lenient, much lower than the statutory minimum, and notably four years' imprisonment as compared with twelve to twenty years' imprisonment and confiscation of property (see paragraphs 28 and 37 above).

Overall, the Court observes that the applicant was convicted as a serving military officer, and not as a journalist, of treason through espionage for having collected and kept, with the intention of transferring it to a foreign national, information of a military nature that was classified as a State secret. The materials in the Court's possession reveal that the domestic courts carefully examined the circumstances of the applicant's case, addressed the parties' arguments and based their findings on various items of evidence. Their decisions appear reasoned and well-founded. On balance, the Court considers that the domestic courts cannot be said to have overstepped the limits of the margin of appreciation which is to be left to the domestic authorities in matters of national security (see Hadjianastassiou, cited above, § 47). Nor does the evidence disclose the lack of a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. There is nothing in the materials of the case to support the applicant's allegation that his conviction was overly broad or politically motivated or that he had been sanctioned for any of his publications.

In the light of the foregoing, the Court finds that there has been no violation of Article 10 of the Convention in the present case.

The Court further notes that the applicant's complaints under Article 7 of the Convention concern the same facts as those examined under Article 10 of the Convention. Having regard to its findings under this latter provision, the Court considers that it is unnecessary to examine those complaints separately.